R v. CHOI KAI ON

IN THE COURT OF APPEAL

Mag. App. No. 316/92

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J U D G M E N T

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Penlington J.A.:

Background

1. This is an appeal by the appellant on a point of law against his conviction by Mr. W.J. Eccleton in the North Kowloon Magistracy on a charge under Section 6 of the Gambling Ordinance of gambling in a gambling establishment. The appeal first came before Mayo J on the 17th of June 1993 who referred the matter to this Court, pursuant to Section 118 (1) (d) of the Magistrates Ordinance. This was because, in convicting the appellant, the magistrate had relied on Section 19(2) of the Gambling Ordinance which reads as follows:

"19(2) Where in any proceedings under section 6 it is proved that a person was found in a gambling establishment or that a person escaped from a gambling establishment on the occasion of its being entered under section 23(2) (a) , such person shall until the contrary is proved be presumed to have been gambling therein."

2. The validity of that section was not challenged at the trial on the 7th of January 1993 but it is a ground of appeal here that it is contrary to Section 8, article 11, of the Bill of Rights Ordinance (BORO) and therefore was, pursuant to Section 3 of that Ordinance, deemed to have been repealed as from the 8th of June 1992, the date BORO came into force.

3. Section 8, article 11(1) of BORO reads:

"(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

4. Here there was no dispute, at trial or before us, that the room in which the appellant was found was a gambling establishment.

The Evidence

5. The facts, as found by the magistrate, were that on the 19th of November 1991 a police party raided premises at Room 20, 4th floor, 1-19 Lok Kwan St., Mongkok, at 17:45 hrs, armed with an authorisation issued under Section 23 of the Gambling Ordinance. There was a wooden door protected by an iron grill. They rang the door-bell and a man came to the wooden door which he opened. He was then told that it was police operation and he must open the grill. He did not do so and the police officers tried to force it open. However after some 30 seconds the grill was opened from inside and the police party entered. There were nine men inside the premises. Equipment was seized which was consistent with the premises being used at the time of the raid for gambling at fan-tan. There were a 244 white beans, a cup and cash $1,165 on a table. The nine men were arrested. Li Hoi-ling was charged with operating a gambling establishment and permitting premises to be used for that purpose; Chan Ping-wai with assisting in the operation of the establishment and the other seven, including this appellant, with gambling in a gambling establishment.

6. The question of what was meant by the words in section 8, article 11, of BORO, "according to law", came before this court in R v Sin Yau-ming [1992] 1 HKLR 127 when authorities from other jurisdictions were considered in relation to legal presumptions which, once raised by proven facts, required to be displaced by an accused person. The principle which was accepted was that there could be a lawful presumption if it passed two tests.

7. First: It had to be rational. There must be a logical connection between the facts relied on and the conclusion which is to be presumed. In Sin Yau-ming it was held that some presumptions in the Dangerous Drugs Ordinance did not have that logical connection. One was that possession of five or more packets of narcotic raised a presumption of trafficking. There was however unchallenged evidence that an addict might well be in possession of five packets for his own use. That also applied to a presumption of trafficking raised by possession of 0.5 of a gramme of heroin. Similar considerations applied to a presumption as to the possession of keys to premises in which drugs were found. In the context particularly of Hong Kong's housing conditions there may well be several persons with keys to the same premises and a presumption that each of them had the drugs in his possession was illogical.

8. Second: It must be proportionate. The presumption must be looked at to see if it goes no further than is necessary in infringing the rights now encapsulated in BORO, having regard to the evil that is aimed at and the difficulty the Crown would have in combating it without the aid of the presumption. At p.145 Silke V.P. said:

"The onus is on the Crown to justify. It is to be discharged on the preponderance of probability. The evidence of the Crown needs to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but, in the light of the contents of the Covenant and its aim and objects, with a bias towards the interests of the individual. Further the aims of the legislative to secure the residents of Hong Kong free from the depredations of this trade must be respected".

9. The appellant was initially not represented at the trial. He agreed with the Crown's outline of the facts. He was informed of the contents of Section 19 of the Gambling Ordinance and the presumption which it raised against him. He elected to give evidence and said he went to the premises at 5:30 p.m. to repay Li Hok-ling a debt of $1,000 which he had borrowed the previous week. He had been to the premise once before when there were three to four persons present. He paid Li the money and then waited for Li to come away with him to have tea. In the meanwhile he just sat and watched the others' gambling. He was invited to join in but declined. Suddenly the police came and he was arrested. He denied gambling himself.

10. The magistrate found the appellant to be an unconvincing witness and did not accept that he was not gambling in the premises. He found his evidence to be "totally unbelievable".

11. The appellant did not call any other evidence and was convicted and remanded in custody for sentence. The court was aware that, on the 23rd of October 1991, he had been sentenced to 28 days imprisonment for a similar offence, that sentence being suspended for 12 months.

12. When he came up for sentence he was represented by a solicitor who then raised the question of the validity of Section 19 of the Gambling Ordinance and asked the magistrate to review his decision. This was done on the 10th of March when the magistrate heard submissions from counsel for the appellant and from Mr. S.R. Bailey, Senior Assistant Crown Prosecutor, who also appears for the Crown here. The magistrate, having reviewed the authorities, found that Section 19 of the Gambling Ordinance was not inconsistent with BORO and refused to set aside the conviction. The appellant now appeals to this court against that decision.

Grounds of Appeal

1. Rationality

13. It was the main thrust of Mr. Poll's argument for the appellant that the terms of Section 19(2) of the Gambling Ordinance are couched in terms far too wide to be able to pass the first test in Sin Yau-ming. The word "establishment" could mean the whole premises. In the case, for instance, of a restaurant it would include private function rooms, wash-rooms and kitchens, containing patrons, waiters and cooks who had nothing whatever to do with gambling going on in another part of the restaurant. In such a case the presence of a defendant in such other room would have no logical connection with the gambling going on elsewhere.

14. "Gambling Establishment" is defined in Section 2 of the Gambling Ordinance as follows:

"'gambling establishment' includes any premises or place, whether or not the public or a section of the public is entitled or permitted to have access thereto, opened, kept or used, whether on one occasion or more than one occasion, for the purposes of or in connection with unlawful gambling or an unlawful lottery."

15. It is a wide definition but much will depend in each case on what the Crown seeks to show was the extent of the "establishment". Here it was simply a room in which admittedly unlawful gambling was going on. There is a clear rational connection between the appellant's presence in the room and a presumption that he was taking part in the gambling. If, however, a court was asked to infer by reliance on Section 19(2) that a person found, as Mr. Poll suggests, in the kitchen of a restaurant or in another room, separate from where gambling was going on, we would not accept that there is the rational connection which is necessary for the presumption to be lawful. Each case must be looked at to see if the premises or place in which the accused is found is such that the presumption is rational and therefore lawful. That of course does not mean that the presumption must be seen to flow inescapably from the facts as found. As Mr Bailey pointed out, there will always be a possibility that a person found in circumstances such as here was not gambling but such a possibility does not make the presumption irrational.

2. Proportionality

16. Mr. Poll did not dispute that illegal gambling was a major social problem in Hong Kong. It would follow then that if it is necessary in order to combat that problem to interfere with rights contained in BORO, such interference will not render the effective legislation invalid if it goes no further than is required. In United States v Gainey (1965) 13 L Ed 2d 658 the Supreme Court considered a presumption of guilt from mere presence on the site of an illegal distillery. The Court held that Congress must have "considered the practical impossibility of showing actual participation in the illegal activities except by inference drawn from the defendant's presence when the illegal acts were committed". We consider that very similar considerations apply here. If it were necessary to have direct evidence of actual gambling a raid such as the one carried out here would be quite useless. It is well known that gambling establishments always have some form of security which may be simple - as here - or far more elaborate. However they are designed to give ample warning of police presence and no doubt do so. Short of the employment of under-cover agents, with all the difficulty and dangers that encompasses, some form of legislative presumption is necessary to make the person present in or escaping from a gambling establishment accountable.

17. Mr. Poll, however, while not seriously contesting that some interference with citizen's rights is lawful in order to combat illegal gambling, submits that here again the legislation goes too far. While gambling is a serious social problem it should not be compared with the evils of the narcotics trade and was more akin to smuggling. He referred us to Sections 18A and 35A of the Import and Export Ordinance Cap. 60 which were considered in R v Wong Hiu Chor and anr. Mag. App. 227/92. There the legislation provided that if a person has possession of, conceals or deals with cargo in such a way as to raise a:

"reasonable suspicion that he had the intent to assist in the export of unmanifested cargo or in the carriage of prohibited articles",

he shall be presumed to have such intent in the absence of evidence to the contrary.

18. Mr. Poll submits that there should be a similar provision in relation to gambling and, if there were, the appellant here, having given evidence as to his innocent presence in the gambling establishment, would not have had as heavy a burden on him to discharge. Fuad V.P. said in Wong Hiu Chor that if there was evidence coming from the defendant or contained in the Crown's own evidence which, if believed, might create a reasonable doubt on the issue the burden is then again on the Crown to show beyond reasonable doubt that the defendant had the necessary intent required by the sections. Mr. Poll submits that so long as a defendant found in or escaping from a gambling establishment is required to produce evidence as an explanation for his presence or escape before the presumption bites that is all that should be required of him. There would be minimum infringement of his rights.

19. Mr. Bailey contended that legislation along the lines of the provisions of the Import and Export Ordinance would not be sufficient to enable the police to take effective steps against gambling casinos. He referred us to R v Chaulk (1990) 62 C.C.C. (3d) 193 where at p221 Lamer CJC, making reference to recent judgments of the Supreme Court- of Canada, said that they

"indicate that Parliament is not required to search out and to adopt the absolutely least intrusive means of attaining its objective. Furthermore, when assessing the alternative means which were available to Parliament, it is important to consider whether a less intrusive means would achieve the 'same' objective or would achieve the same objective as effectively".

He went on at p222:

"As was stated in Reference re ss. 193 and 195. 1(1) (c) of the Criminal Code, supra, it is not the role of this court to second-guess the wisdom of policy choices made by Parliament. In enacting s. 16(4) [presumption of sanity until contrary proved] Parliament may not have chosen the absolutely least intrusive means of meeting its objective, but it has chosen from a range of means which impair s. 11(d) as little as reasonably possible. Within this range of means it is virtually impossible to know, let alone be sure, which means violate Charter rights the least."

Mr Bailey submits that here the presumption in Section 19(2) requires evidence of actual presence in a gambling establishment or escape therefrom. Section 18A and 35A of the Import and Export Ordinance are much wider - the presumption is raised if there are "circumstances which give rise to a reasonable suspicion that there is intent".

20. We rather suspect that in practise the difference between the presumption in Sections 18A and 35A of the Import and Export Ordinance and that in Section 19(2) of the Gambling Ordinance is minor. But what we are concerned with is the wording of the Ordinance under discussion and we should not engage in a comparative exercise. The issue is: are the destructive effects of 19(2) on the presumption of innocence proportional to the objective of the legislation? It is not for this court to redraft that legislation.

21. We do not consider that they have been shown to be disproportionate to the evil which is sought to be remedied.

22. Bearing in mind that, as was said by Silke V.P. in Sin Yau Ming, that the onus is on the Crown, we consider that a presumption of gambling based on presence in or escape from a gambling establishment is proportional. We do not consider the sub-section offends against Section 8 of BORO on the ground of proportionality.

23. We would dismiss this appeal.

Silke, V.P.:

Sentence

24. Having found against the applicant in relation to the matters brought before this court under the provisions of section 118(1)(d) of the Magistrates Ordinance - a matter of public importance - we have given leave to the applicant to make an application for leave to appeal against sentence out of time.

25. The circumstances are very unusual in that this offence took place in 1991. There had been various steps in between including a considerable delay awaiting the decisions from the Judicial Committee of the Privy Council which decisions impinged, or were thought to impinge, on the issues raised here.

26. The applicant has served 17 days of the sentence imposed by the trial magistrate; which was a sentence of 28 days imprisonment together with the activation of a prior suspended sentence of 28 days imprisonment. He has had this matter hanging over him now for what is an abnormal length of time through no fault of his own - nor indeed of the Court.

27. In these exceptional circumstances - and we are not in any way to be taken as saying that the sentence imposed, or the activation of the prior sentence, by the learned magistrate were wrong at the time the orders were made - we would grant the leave asked for, treat the hearing as the hearing of the appeal and allow the appeal against sentence. We direct that there be such sentence imposed upon the appellant as would effect his immediate release. We rescind the order relating to the activation of the prior sentence. We would emphasize however that the activation at the time was certainly by no means wrong and had this matter been capable of being dealt with at an much earlier time, it is highly unlikely that we would have taken the unusual course we now do. The result is that the 17 days is the full time the applicant will in fact serve and he can now be released.